A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §62-1G-1 and
§62-1G-2, all relating to issuing a subpoena in aid of
criminal investigations involving certain crimes against
minors; providing legislative declaration of necessity;
providing definitions; authorizing issuance of a subpoena upon
reasonable suspicion that an electronic communications system
or service or remote computing service has been used in the
commission of a criminal offense of a sexual nature against a
minor upon written application therefor by the West Virginia
State Police Crimes Against Children Unit; providing
definitions; requiring that certain information be provided in
the subpoena; providing what information is to be disclosed in
response to a subpoena; authorizing a fee for information
provided in response to subpoena; providing for nondisclosure
of subpoena or response to subpoena to account holder; and
limiting liability of electronic communication systems or
services, remote computing service providers, electronic
service providers and telecommunications carriers.

Be it enacted by the Legislature of West Virginia:

That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §62-1G-1 and §62-1G-2,
all to read as follows:

It is declared, as a matter of legislative determination, that
it is necessary to grant subpoena powers in aid of criminal
investigations of certain crimes against minors involving
electronic communications systems or services or remote computing
services.

§62-1G-2. Subpoenas for criminal investigations relating to
certain offenses against minors for records
concerning an electronic communications system or
service or remote computing service; content; fee
for providing information; and limiting liability.

(a) As used in this section:

(1)(A) "Electronic communication" means any transfer of signs,
signals, writing, images, sounds, data or intelligence of any
nature transmitted, in whole or in part, by a wire, radio,
electromagnetic, photoelectronic or photooptical system.

(B) "Electronic communication" does not include:

(i) Any wire or oral communication;

(ii) Any communication made through a tone-only paging device;

(iii) Any communication from a tracking device; or

(iv) Electronic funds transfer information stored by a
financial institution in a communications system used for the
electronic storage and transfer of funds.

(2) "Electronic communications service" means any service
which provides for users the ability to send or receive wire or
electronic communications.

(3) "Electronic communications system" means any wire, radio,
electromagnetic, photooptical or photoelectronic facilities for the
transmission of wire or electronic communications, and any computer
facilities or related electronic equipment for the electronic
storage of the communication.

(4) (A) "Electronic service provider" means a person or
entity engaged in the business of providing computer communications
through which a consumer may obtain access to the internet.

(B) "Electronic service provider" does not include a common
carrier if it provides only telecommunications service.

(5) "Sexual offense against a minor" means:

(A) A violation or attempted violation of section five,

article eight-d, chapter sixty-one of this code;

(B) A sexual offense or attempted sexual offense committed
against a minor in violation of article eight-b, chapter sixty-one
of this code;

(C) The distribution and display or attempted distribution
and display of obscene materials to a minor in violation of section
two, article eight-a, chapter sixty-one of this code;

(D) The use or attempted use of obscene matter with the
intent to seduce a minor in violation of section four, article
eight-a, chapter sixty-one of this code;

(E) The employment or use or the attempted employment or use
of a minor to produce obscene materials in violation of section
five, article eight-a, chapter sixty-one of this code;

(F) The solicitation of a minor by use of a computer in
violation of section fourteen-b, article three-c, chapter sixty-one
of this code; or

(G) The use of a minor in filming sexually explicit conduct
in violation of sections two and three, article eight-c, chapter
sixty-one of this code.

(6) "Remote computing service" means the provision to the
public of computer storage or processing services by means of an
electronic communications system.

(b) When a law-enforcement agency is investigating a sexual
offense against a minor, an offense of stalking under section nine-a, article two, chapter sixty-one of this code when the victim is
a minor or an offense of child kidnapping under section fourteen,
article two, chapter sixty-one of this code, and has reasonable
suspicion that an electronic communications system or service or
remote computing service has been used in the commission of a sexualoffense against a minor as defined in this section, an offense of
stalking when the victim is a minor or an offense of child
kidnapping, a magistrate, a family court judge or a circuit court
judge may issue a subpoena upon written application by a member of
the West Virginia State Police Crimes Against Children Unit,
consistent with 18 U.S.C. §2703 and 18 U.S.C. §2702, to the
electronic communications system or service or remote computing
service provider that owns or controls the internet protocol
address, websites, electronic mail address or service to a specific
telephone number, requiring the production of the following
information, if available, upon providing in the subpoena the
internet protocol address, electronic mail address, telephone number
or other identifier, and the dates and times the address, telephone
number or other identifier suspected of being used in the commission
of the offense:

(1) Names;

(2) Addresses;

(3) Local and long distance telephone connections;

(4) Records of session times and durations;

(5) Length of service, including the start date and types of
service utilized;

(6) Telephone or other instrument subscriber numbers or other
subscriber identifiers, including any temporarily assigned network
address; and

(7) Means and sources of payment for the service, including any
credit card or bank account numbers.

(c) A subpoena issued under this section shall state that the
electronic communications system or service or remote computing
service provider shall produce any records under subdivisions (1)
through (7) of subsection (b) of this section, that are reasonably
necessary to the investigation of the suspected criminal activity
or offense as described in the subpoena.

(d) (1) An electronic communications system or service or
remote computing service provider that provides information in
response to a subpoena issued under this section may charge a fee,
not to exceed the actual cost for providing the information.

(e) The electronic communications system or service or remote
computing service provider served with or responding to the subpoena
shall not disclose the existence of the subpoena or its response to
the subpoena to the account holder identified in the subpoena.

(f) If the electronic communications system or service or
remote computing service provider served with the subpoena does not
own or control the internet protocol address, websites or electronic
mail address or provide service for the telephone number that is a
subject of the subpoena, the provider shall:

(1) Notify the investigating law-enforcement agency that it is
not the provider of the service; and

(2) Provide to the investigating law-enforcement agency any
information the provider knows, through reasonable effort, that it
has regarding how to locate the electronic service provider that
does own or control the internet protocol address, websites or
electronic mail address, or provides service for the telephone
number.

(g) There shall be no cause of action against any electronic
communication system or service, remote computing service provider,
electronic service provider or telecommunications carrier or its
officers, employees, agents or other specified persons for providing
information, facilities or assistance in accordance with the terms
of the subpoena issued under this section.

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(NOTE: This article is new; therefore, strike-throughs and
underscoring have been omitted.)